These terms and conditions (Agreement) apply to the provision of any services by Piksoul Pty Ltd (ACN 162 790 221) (Piksoul, we, us, our) to you (you, your, yourself) from time to time (individually, a Service, collectively, the Services).
Certain words used in this Agreement have a special meaning which is set out in clause 1 below.
Fees means the charges for the Services as published in The Console. Unless otherwise stated, the Fees are exclusive of taxes.
Registrar means an entity accredited by the Registry to offer registration services for a particular domain space.
Registration Agreement means the agreement or agreements to be entered into between the registrant and the Registrar, the relevant Registry or other authority to register, renew or transfer a domain name.
Registrant means the applicant for, and on registration, the licence holder of a domain name.
Registry or Naming Authority means the entity authorised to administer the registry for a domain name.
2) Term and Services
2.1 This Agreement commences on the date you accept the terms (as noted above), and terminates on the day notified by either party in accordance with the terms of this Agreement.
2.2 Services will be automatically renewed for further periods equal to the previous term, unless otherwise notified. Cancellation of a Service must occur prior to automatic renewal, as cancellations submitted after the scheduled automatic renewal date will not receive any refunds or credits.
3.1 You are solely responsible for payment of all Fees (together with any applicable taxes) payable to us for the Services. The failure to meet any Fees as and when they fall due is a material breach of this Agreement.
3.2 We will process orders for provision of Services only to the extent your Account has sufficient funds available. If we have agreed to provide you with a credit account, we will invoice you for the Fees (together with any applicable taxes) relating to the ordered Services, and you must pay us the Fees by the due date stipulated in the invoice.
3.3 If you wish to dispute an invoice or charge, then you agree to do so in good faith and within thirty (30) days of date of invoice or charge.
3.4 If your Account contains a negative balance or you fail to pay any Fees when due, we may suspend your Account, or the provision of Services to you.
3.5 In the event any collection action is taken by us to recover any overdue amount, any costs incurred by us in recovering the debt (including, without limitation, any legal expenses (on a solicitor/client basis), collection agency charges or any other reasonable associated costs incurred) are payable by you and shall be recoverable by us as a separate debt.
4.1 YOU AGREE TO READ, COMPLY WITH, AND ENFORCE THE SERVICE TERMS. The Service Terms are incorporated by reference into, this Agreement.
4.2 You are responsible for:
(a) ensuring that you provide full, accurate and up-to-date information in relation to the Services (and that such information is updated as necessary);
(b) arranging and obtaining, any and all intellectual property right consents, clearances and authorisations (including from any third party) necessary to ensure the ordering, provisioning and/or use of our Services does not infringe upon any third party intellectual property rights. This includes, without limitation, the provision of copyrighted materials, use of trademarks and/or logos; and
4.3 Failure to comply with any obligations under this clause 6 will constitute a material breach of the Agreement by you.
5) Warranties / Disclaimers
5.1 You represent and warrant that:
(a) you are authorised to enter into this Agreement, act on behalf of your end-customers in respect of the Services, and provide any required consents, clearances and authorisations under this Agreement to us;
(b) you will comply with all applicable laws relating to your performance under this Agreement (including without limitation, your use of our Services), and will not be involved in any activity which may directly or indirectly bring us or any Registry or third party supplier into disrepute; and
(c) you will act in good faith when dealing with us and utilising our systems and/or Services, and will promptly do, or arrange for others to do, all things reasonably required to give full effect to the provisions of this Agreements (and the transactions contemplated by it).
5.2 We shall use reasonable commercial endeavours to provide continuing availability of our Services, and to minimise any downtime or interruptions to the availability of our Services.
5.3 To the maximum extent permitted by law, all other conditions, warranties and guarantees expressed or implied by any legislation, the common law, equity, trade, usage or otherwise in relation to the supply of services under this Agreement or otherwise in connection with this Agreement, are expressly excluded. We make no warranty, express or implied, that (i) the Services, access and use of our systems, or information received by any party through use of our Services or systems, will be uninterrupted, error-free, virus-free, timely, secure, accurate, reliable or of any particular quality or standard, or (ii) any terms and conditions made available to you (or your end-customers) through our systems are valid, enforceable or comply with all applicable laws. In no event will we be liable to you for loss of data, or the inability to retrieve data, resulting from or incidental to the use of a Service or access to our systems.
5.4 Certain provisions of the Competition and Consumer Act 2010 (Cth) and other statutes, rules and regulations in Australia may imply certain non-excludable warranties or conditions or mandate certain statutory guarantees. To the extent that they are not permitted to be excluded, our liability for breach of such conditions, warranties or guarantees and your sole and exclusive remedy in relation to such breaches shall be limited to:
(a) in the case of software or other goods under this Agreement, at our option: (i) replacing or repairing that software or those goods, or supplying of equivalent software or goods; or (ii) paying the cost of replacing or repairing software or goods or of acquiring equivalent software or goods; and
(b) in the case of Services under Agreement, at our option: (i) supplying the Services again; or (ii) paying the cost of having the services supplied again.
5.5 We specifically disclaim any and all warranties, representations, terms and conditions related to or in connection with the products, services and performance of third parties, regardless of whether you are aware that any such product, service or performance is provided by a third party.
6) Liability and Indemnity
6.1 To the maximum extent permitted by law and subject to clause 5.4, you agree that we exclude all liability for indirect and consequential loss or damage of any kind, loss or corruption of data, loss of revenue, loss of profits, failure to realise expected profits or savings and any other commercial or economic loss of any kind, in contract, tort (including negligence), under any statute or otherwise arising from or relating in any way to this Agreement.
6.2 Other than liability accepted by us in clause 5.4, our total liability for loss or damage of any kind not excluded by clause 6.1, however caused, in contract, tort (including negligence), under any statute or otherwise arising from or relating in any way to this Agreement shall not exceed an amount equal to the Fees paid by you to us in the preceding six (6) months for that Service.
6.3 You agree to indemnify, keep indemnified and hold us harmless from and against any and all actions, claims, proceedings, losses, damages, costs and expenses (including legal fees and expenses on a solicitor/client basis) and other liabilities of whatever nature, whether foreseeable or not, and whether direct or indirect, incurred by us in respect of any claim (i) by a third party arising in connection with this Agreement (except to the extent such a third party claim arises as a direct result of our breach of this Agreement), and/or (ii) arising in connection with your breach of this Agreement.
6.4 The damages payable by one party to the other party under or in connection with this Agreement will be reduced to the extent that the act or omission giving rise to liability to pay those damages was caused or contributed to by that other party.
7.1 We may immediately suspend your Account, or the provision of Services, where you fail to comply with any term(s) of this Agreement (including without limitation, complying with payment terms and any Service Terms (as applicable)).
7.2 We will not be liable in any way for suspension of your Account or the provision of Services (including any non-performance of Services).
8.1 We may terminate this Agreement immediately and without prior notification if:
(a) you are in breach of any term(s), conditions or obligations in this Agreement and (if the breach is capable of remedy) the breach has not been remedied within fourteen (14) days of notification from us setting out the breach and requiring it to be remedied;
(b) you dispose of the whole or part of your assets, operations or business other than in the normal course of business (except for purposes of a re-organisation or reconstruction);
(c) you cease to be able to pay your debts as they become due, have an administrator appointed or cease to carry on business; or
(d) you are subject to an event of force majeure in excess of sixty (60) days.
8.2 Either party may terminate this Agreement for convenience on thirty (30) days’ written notice to the other party.
8.3 On termination of this Agreement:
(a) all outstanding Fees become immediately due and payable by you. Subject to the preceding sentence or any claim we have, you will be entitled to repayment of any unused prepaid balance in your Account. There are no refunds or credits for recently purchased Services in the event of termination of the Agreement; and
8.4 In the event a third party supplier ceases its supply of any services to us (which are, or form part of, a Service to you), we will use reasonable commercial endeavours to honour the remaining period of your then-current Service term. However, to the extent any Service is detrimentally affected as a result of any third party supplier ceasing or varying its services, we will not be liable for any resulting delays, faults or inability to perform our obligations to you under this Agreement in respect of any such impacted Service. We will endeavour to notify you of any anticipated impacts as soon as practicable.
In addition to general Account, Billing and Service communications, we may, from time to time, issue email notifications relating to our Services, including, but not limited to Newsletters, Announcements, Promotional and Seasonal offers, and Surveys. By entering into this Agreement, you consent to us sending you email communications. You may unsubscribe from these communications at any time by notifying us or by clicking the unsubscribe link provided within the communications. You will not be able to opt-out of Critical Service Notifications, Renewal, Billing and Account Notifications, Scheduled Downtime Notifications or any other communications deemed to be an essential part of our service to you.
10) Data Protection
10.1 We shall ensure that when storing and processing personal data (Data) we shall at all times comply with the provisions and obligations of the Australian Privacy Act 1988 (Cth)(Privacy Law) and will only store or process Data in relation to the Services we offer.
10.2 You acknowledge that Data will be processed by us or our suppliers, subcontractors, related corporations or agents; and may be transferred outside the jurisdiction of Australia (or in which you are based). By providing or giving access to Data, you warrant that you have complied with (i) the Privacy Law, or (ii) the applicable rules and legislation in the jurisdiction you operate in, and that you have obtained the necessary consent of any employees or third parties (including without limitation, any end-customer) that you may be acting on behalf of.
10.3 We will not keep Data longer than is necessary for the purposes for which the Data was collected or for which it is further processed. The Data collected by us will not be processed in a manner that is incompatible with the purposes for which it was obtained. You may at any time request to see the Data and amend same if required.
10.4 We agree we will take reasonable precautions to protect Data from loss, misuse, unauthorised access or disclosure, alteration, or destruction.
11.1 This Agreement contains the entire agreement between the parties with respect to its subject matter and supersedes all other representations, negotiations, arrangements, understandings or agreements and other communications.
11.2 We may update the terms of this Agreement by giving you notice of the change or posting new versions online. The period of notice required to be given depends on the nature of the change. If:
(a) the change will benefit you or have a neutral impact on you, we may make the change effective immediately and without advance notice by posting a general notice on our website as outlined above;
(b) the change is required to comply with any law or requirement of any regulatory body (including ICANN, auDA or any other domain name regulatory body), we will provide a reasonable period of notice (such period to be as reasonably practicable);
(c) the change is required to preserve or safeguard the security or integrity of any network or system we use to provide services to our customers or to maintain any accreditation we are required to have, we will make the change effective immediately and will provide notice through one or more of the methods outlined above; and
(d) for all other changes, we will also give you at least thirty (30) days’ notice.
11.3 Where a party exercises all due care and diligence, that party will not be liable for any delay or failure to perform obligations under this Agreement (other than an obligation to pay money or ensuring end-customers have accepted terms no less restrictive than those contained in this Agreement) if the delay or failure is due to any cause beyond its reasonable control.
11.4 Neither party may assign its rights or obligations under this Agreement without the written consent of the other party which consent will not be unreasonably withheld; provided, however, that we may assign this Agreement to a successor in connection with any merger, acquisition, or sale of all or substantially all of our business or assets to which this Agreement relates.
11.5 The relationship of the parties is that of independent contracting parties. Nothing in this Agreement may be considered or interpreted as constituting the relationship of the parties as that of partners, channel partners, joint ventures or principal and agent.
11.6 No failure to exercise and no delay in exercising any right, power or remedy under this Agreement will operate as a waiver.
11.7 This Agreement is governed by, and construed in accordance with, the laws of the State of Western Australia, and the parties submit to the exclusive jurisdiction of the courts of that State.